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COOPERATION BETWEEN THE PRESIDENT OF THE REPUBLIC OF POLAND AND THE COUNCIL OF MINISTERS AS A CONSTITUTIONAL REQUIREMENT OF ENSURING STATE SECURITY IN THE EVENT OF PARTICULAR THREATS (Wspoldzialanie Prezydenta RP I Rady Ministrow jako konstrytucyjny

Source

Abstract

According to Poland's constitution, State security is the area of close cooperation between two components of the executive: the President of the Republic and the Council of Ministers. This cooperation makes it possible to prepare adequately the organizational structure of the State to meet the arising challenges or to use appropriate measures to counteract particular threats. In many cases, it is only by that means that a declaration of threat to the State may be revoked, either by joint decision of the President and the Council of Ministers introducing the appropriate extraordinary measure (a state of emergency or martial law) or an order, issued by the President, on request of the prime minister, concerning mobilization and use of the armed forces for purposes of defence. In this respect, responsibility for the State and its security is, in principle, shared equally between both components of the executive power. Moreover, this statement allows us to draw some proposals de lege ferenda. They may include, above all, the proposal to amend Article 134 of the Constitution. It should provide real control of the President over the armed forces for a period of war, at the same time sustaining the principle of collaboration between the above two components of the executive power within the field of State security. There is no intention to abolish the position of the Commander-in-Chief of the Armed Force, but to determine clearly the relations between the President and the government in a particular crisis situation, namely a war. These relation should still be based on the principle of cooperation between the branches of government, explicitly specified in constitution. Article 134 paragraph 4 should include a provision according to which, for a period of war, the President directs the State defence in cooperation the Council of Ministers. It would be, thereby, be possible to provide conformity of the provisions of the Act on Martial Law with the Constitution. To guarantee functionality of that provision, the President would remain to be the Supreme Commander of the Armed Forces, supported by the Commander-in-Chief. Currently he exercises commend over the Armed Forces through the Minister of National Defence. For a period of war he would exercise them through the Commander-in-Chief, so to speak. From the perspective of normative regulation, this would make the system of directing State defence more clear. Current regulation do not meet this requirement. That is because the provisions of the Act of 2002 on Martial Law, implementing the constitutional provisions, depart slightly from the letter and spirit of the Constitution of the Republic of Poland. This conclusion is not only the result of confrontation of the content of Article 134 paragraph 4 first sentence of the Constitution and Article 10 paragraph 2 item 4 of the Act on Martial Law - the Constitution in fact introduces an obligation for appointment of the Commander-in-Chief of the Armed Forces while the Act only provides for such an opportunity. What is probably more important, is that the Act contains provisions whose literal interpretation would cause doubts about the model of directing the defence on the basis of the Act on Martial Law. On the one hand. Article 10 paragraph 1 of the Act (and subsequent provisions developing its content) declares cooperation between the Council of Ministers as a principle governing the State defence. On the other hand, however, Article 16 paragraph 1 establishes supremacy of the President over the Armed Forces, with the omission of that principle. The status and role of the Council of Ministers in the system of State security (derived from the constitutional system government) is ignored.

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